Hebron Brick Co.

National Labor Relations Board - Board Decisions

Jan 12, 1962

135 N.L.R.B. 245 (N.L.R.B. 1962)

HEBRON BRICK COMPANY 245
spondent immediately upon receipt thereof and maintained by it for a period of
60 consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of this Recommended Order, what steps Respondent has taken
to comply herewith.
The allegations of the complaint that Respondent violated Section 8(a) (3) of the
Act are hereby dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees in regard to the union sympathies
or activities of themselves or fellow employees under circumstances constituting
interference, restraint, or coercion in violation of Section 8(a)(1) of the Act,
or in any like or related manner violate Section 8(a).(l) of the Act.
DOBBS HOUSES COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Hebron Brick Company and General Drivers and Warehousemen,
Local 123, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Peti-
tioner. Case No. 18-RC-4725. January 12, 1962
DECISION ON REVIEW AND ORDER
On June 18, 1961, the Regional Director for the Eighteenth Region
issued a Decision and Direction of Election in the above-entitled pro-
ceeding (not published in NLRB volumes). Thereafter, the Em-
ployer and the Intervenors, Local 901, United Brick and Clay Workers
of America, and United Brick and Clay Workers of America, AFL-
CIO, also referred to herein respectively as Local 901 and the Inter-
national, in accordance with Section 102.67 of the Board's Rules and
Regulations, filed with the Board timely requests for review of such
Decision and Direction of Election, on the ground, inter alia, that the
Regional Director erroneously found that the contract executed by
the Employer and Local 901 was not a bar to the petition. The
Petitioner, on July 14, 1961, filed its opposition to the requests.
The Board by telegraphic order, dated July 19, 1961, granted the
requests for review and stayed the election pending its consideration
of the merits of the issues raised in the requests for review. There-
after, the Employer filed a supporting brief.
135 NLRB No. 16.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the record, the requests for review, the
supporting brief, and the opposition thereto and, for the reasons set
forth below, finds, contrary to the Regional Director, that the contract
constitutes a bar.
The petition herein was filed by the Teamsters on May 16, 1961,
seeking a unit of all plant employees at the Employer's brick and tile
manufacturing operation in Hebron, North Dakota. The Employer
and the Intervenors contended at the June 1 hearing that the petition
was barred by a contract between the Employer and Local 901, ef-
fective from April 2, 1960, to March 1, 1963. The Regional Director
held that the contract was not a bar to the petition because (1) the
contract was a "members-only" agreement; and (2) Local 901 is
defunct.
1. The members-only agreement
The Regional Director predicated his finding that the contract was
a members-only agreement on the recognition clause which provides :
The Company agrees to recognize the Union as the bargaining
agency for all employees of the Hebron Brick Company, with the
exception of the foreman and office staff, that are members of such
Union and this agreement shall apply only to such members.
The Regional Director found that under this clause Local 901 is
recognized as the representative only of those employees who are its
members and that such a "members-only", agreement cannot operate
as a bar under the Board's decision in Appalachian Shale Products
Co.' He rejected the Employer's contention that evidence was admis-
sible to show that the contract was applied to all employees on the
ground that the Board, for contract-bar purposes, looks only to the ex-
press provisions of a contract and does not rely upon extrinsic evi-
^dence. The Employer asserts that the contract is ambiguous as to its
coverage and that the Board permits the admission of extrinsic evi-
dence in such situations to determine the intent of the parties.
We do not believe that the express provisions of the contract clearly
establish that it is a members-only agreement. Thus, its substantive
provisions do not limit contractual benefits to union members and the
provisions governing wages and seniority specifically apply to all
employees. In our opinion, it could reasonably be inferred that the
contract was applied to all employees in the unit regardless of union
membership. However, as this inference does not explain the inde-
terminate reference to union members in the recognition clause, we
find that an ambiguity exists as to the intended coverage of the con-
tract which, in these circumstances, necessarily must be resolved by
considering the intent and the practice of the contracting parties.
1121 NLRB 1160.
HEBRON BRICK COMPANY 247
The uncontroverted testimony of the Employer and that of W. W.
Murrey, president of the State (North Dakota) Federation of Labor,
.who had negotiated contracts for Local 901, shows that the contract
was applied to all plant production and maintenance employees re-
gardless of union membership. Murrey testified that the reference to
union members in the recognition clause was added to the contract in
1952. Prior to that year only plant employees were covered by the
contract, but in 1952 Local 901 requested and the Employer granted
it recognition for those clericals who were union members. The recog-
nition clause thereafter was amended to continue the exclusion of
office clericals except those who were members of Local 901. Although
unartfully drafted, the amendment was not intended to affect the
status of Local 901 as the exclusive representative of all plant
employees.
In view of this uncontroverted testimony, we believe that the intent
and the practice of the contracting parties was to include all plant
production and maintenance employees within the coverage of the
contract. We find, therefore, that as the contract covers all the em-
ployees sought in the petition, it is not a members-only agreement and
is not removed as a bar for that reason.
2. The alleged defunctness of Local 901
The Regional Director found that Local 901 was defunct because
it was no longer a functioning labor organization. Local 901's alleged
defunctness was the culmination of an attempt by certain of its mem-
bers to disaffiliate from its parent International because of dissatis-
faction with the terms of the contract referred to above. At the
regular monthly meeting of Local 901 in March 1961, which meetings
were held on the first Friday of each month, some members suggested
that if they affiliated with the Teamsters they might obtain a better
contract. Following this suggestion, the members decided to have
Floyd Cunningham, a Teamsters representative, address them con-
cerning affiliation with the Teamsters.
Cunningham was thereafter invited to attend a special meeting of
Local 901 to be held on May 5, which had been called for the purpose of
disaffiliation. Although notices of the meeting were posted at the
plant, they did not disclose the purpose of the meeting. At the meeting,
the minutes of which were taken by Cunningham's secretary, Cunning-
ham told the members of the advantages of joining the Teamsters and,
at their request, advised them concerning disaffiliation action. In this
connection, he advised them that they should return Local 901's char-
ter to the International and that a Board-conducted election should
be held. A poll was thereupon taken in order to determine, according
to the president of Local 901, "Who was going to go to the Teamsters
and who was going to go with the AFL [the Intervenor]." A ma-
jority of the members present voted to affiliate with the Teamsters.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the assets of Local 901 were distributed among the mem-
bers, and a letter, dictated by Cunningham but signed by two officers of
Local 901, was transmitted with the charter to the International in-
forming it that Local 901 intended to disaffiliate. This letter, how-
ever, did not mention that the members who voted intended to affiliate
with the Teamsters. On May 10, the Teamsters sent a letter to the
Employer in which it claimed to represent a majority of the employees,
and on May 16, filed the petition herein. At the instant hearing on
June 1, which was less than a month after the disaffiliation meeting,
three officers of Local 901 testified that they no longer considered them-
selves officers of Local 901, and that no grievances had been processed
since the disaffiliation meeting, although these witnesses indicated that
they did not know whether there were any grievances awaiting process-
ing during this period. They also testified that if no election were
directed, they would continue to operate under the existing contract.
Under this circumstance, the Local, according to the testimony of the
recording secretary, would continue to conduct its meetings. The
hearing officer permitted representatives of the International to inter-
vene on its own behalf on the basis of its constitution which governs the
relationship between the International and its locals and on behalf
of Local 901 on the basis of the latter's contract with the Employer.
In their request for review, the Intervenors deny that Local 901 is
defunct because, inter alia, an International representative is presently
servicing the Local. On July 14, Local 901, in support of its request,
alleged that it had submitted to the Board's Regional Office authoriza-
tion cards signed by seven employees on its behalf.
The Regional Director found that Local 901 was defunct because it
had made no attempt to intervene at the hearing; had held no meetings
nor processed any grievances since the disaffiliation meeting of May 5,
and its officers considered themselves as having resigned their offices.
It is clear from the record, however, that representatives of the Inter-
national purporting to act on Local 901's behalf had intervened at the
hearing; and that no regular meetings of the Local in fact could have
been held before the June 1 hearing date because regular meetings were
not held until the first Friday of each month. Moreover, there is no
indication in the record that there were any pending grievances within
the short period that intervened between the disaffiliation meeting and
the hearing, or that Local 901 would be unwilling to process any future
grievances.
In view of all the foregoing, we do not believe that the circumstances
surrounding the attempt by certain of the members of Local 901 to
disaffiliate from its International for the purpose of affiliating with
the Petitioner warrants a finding that Local 901 is unable or unwilling
to function as the representative of the employees sought in the peti-
HEBRON BRICK COMPANY 249
tion. • We therefore find that Local 901 is not defunct and the contract
is not removed as a bar to the petition for this reason. Accordingly,
as the existing contract operates as a bar, we shall dismiss the petition.
[The Board dismissed the petition.]
MEMBER RODGERS dissenting :
Contrary to my colleagues, I would affirm the Regional Director's
finding that the contract which is urged as a bar is a "members-only"
contract, and is for this reason invalid as a bar. I also agree with
the Regional Director's further finding that Local 901 has become
defunct.
It is apparent from the recognition clause of the contract that the
contract is by its terms a "members-only" contract. The contract
specifically provides:
The Company agrees to recognize the Union as the bargaining
agency for all employees of the Hebron Brick Company, with
the exception of the foremen and office staff, that are members of
such Union and this agreement shall apply only to such member8.
[Emphasis supplied.]
By its very language, this contract cannot bar the petition herein for
all production and maintenance employees, under the Board's Decision
in Appalachian Shale Products, 121 NLRB 1160, 1164, in which the
Board explicitly stated : "To serve as a bar, a contract must clearly,
by its terms encompass the employees sought in the petition."
[Emphasis supplied.]
It is clear from this and other language of the Appalachian case
that the Board did not intend to permit parties to adduce extrinsic
and subjective testimony as to their intentions or bargaining practices
under a contract which did not by its terms qualify as a bar .2
Moreover, I see no reason to reverse the Regional Director's con-
clusion that Local 901 is defunct. There is no evidence of the con-
tinued functioning, or even existence, of Local 901, as is amply demon-
strated ;by the fact that it was a representative of the International
Union who appeared at the hearing, ostensibly on behalf of Local 901.
My colleagues rely on the appearance of the International repre-
sentative as an indication that Local 901 is not defunct. However, in
Hershey Chocolate Corporation, 121 NLRB 901, the Board held that
the willingness of an International union to assume the functions of
a local union is relevant to the question of defunctness of a local union
a Thus, the Board stated, at page 1163 , "It is felt that objectivity based on known
standards should replace the uncertainty of subjective reasons and explanations , and that
the elimination of this exception will provide a surer and more predictable policy to guide
those who come before the Board ." See also, 121 NLRB 1162 , at footnote 6, in which the
Board expressly overruled prior cases in which the Board had received and relied in parol
evidence of contract terms.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only if the International union is a party to the contract. This is not
the case here.
As the Regional Director followed, and properly applied, the
existing precedents, and as his factual determination regarding de-
functness was not "clearly erroneous on the record"-the standard of
Section 102.67(c) of the Board's Rules-I would affirm his descision.
MEMBER LEEDOM took no part in the consideration of the above
Decision on Review and Order.
International Brotherhood of Electrical Workers, Local Union
861, and Arneth Lard, its Agent and Plauche Electric, Inc.
Cases Nos. 15-CC-123 and 15-CC-1926.1 January 12, 1962
DECISION AND ORDER
On April 12, 1961, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondents and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only so far as consistent with our
decision herein.
1. The facts in Case No. 15-CC-126 are as follows :
U.S. Tire Engineers, Inc., a wholesale and retail tire establish-
ment, required certain electrical work at its premises . Lake City
Electric, a partnership of Dale Bonin and Louis Arnaud, bid for the
work and the bid was tentatively accepted. However, Davis, presi-
' Cases Nos . 15-CC-123 and 15-CC-126 are the subject of a consolidated complaint.
The former , arising out of picketing at Ramada Inn, was originally disposed of by settle-
ment agreement between the Respondents , Lake Charles Building & Construction Trades
Council , AFL-CIO, and T . K. Sitzlein , its agent , and the Charging Party, Plauche Electric,
Inc , and approved by the Regional Director on September 23, 1960 Approximately
3 weeks later, Plauche again filed charges of violations of Section 8(b) (4) (1 ) and (ii) (B)
based on the picketing by Respondents at U.S. Tire Engineers , Inc The Regional
Director found merit in the new charges , and therefore lie set aside the settlement agree-
ment as to Respondents and issued the instant consolidated complaint Because, as
appears below , we find no merit in the new charges, we shall dismiss the complaint and
reinstate the settlement agreement in Case No 15-CC-123 without passing upon the
merits of that case.
135 NLRB No. 41.